LINKAGES BETWEEN ETHICS AND INTERNATIONAL
ECONOMIC LAW
ISABELLA D. BuNN*
1. INTRODUCTION
When I first discussed the possibility of presenting a paper on
the linkages between ethics and international economic law, the
conference organizers agreed that the subject was important but
did not know quite where to place it. I subsequently became the
final speaker at the conference, on the panel concerned with
teaching linkages. I first thought this arrangement was suboptimal, to borrow a term used by our economics-oriented colleagues. Upon further reflection, however, I realized it was most
appropriate.
First, ethics, in many respects, underpins the discussion of international economic law and linkages. The conference panels
have been grappling with the pursuit of values in the economic
system. Conference participants have spoken of justice, right order, global social welfare, the moral basis of human rights, intellectual property as a moral imperative, and the use of trade policy
for constructive purposes, among other themes. Thus, closing the
conference with a direct consideration of ethics serves to highlight
and integrate these ideas.
Second, the focus on teaching has prompted me to find a simple way to package a very complicated topic. I suggest four
themes in approaching the linkage between ethics and international economic law. Taking a cue from other teaching devices
which strive for ease of recall, I have dubbed these the "four C's."
They are conduct, context, content, and criteria. Before turning
to these themes, it is fitting to ask the more general question of
whether there is a place for ethics in international economic law.
Already, the discussions during the course of this conference have
helped refute three key arguments against forging such a linkage.
* Fellow, Centre for the Study of Christianity and Culture,
Regent's Park
College, Oxford University; former General Counsel, California State World
Trade Commission.
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[Vol119:2
The first argument centers around the traditional separation
between economics and ethics. Classic theory holds that each individual, by pursuing his own self-interest, will maximize the
good to society as a whole. This model, which upholds efficiency
and wealth maximization as the ultimate goal of economic life,
has been challenged. It is clear that other underlying moral assumptions and objectives are also at work.
Conference participants inquired about the appropriate presentation of economic theory as an introduction to international
economic law. We are all familiar with the charts and graphs and
explanations of comparative advantage which preface textbooks.!
But it is worth reflecting on alternative responses to the question
"why do nations trade?" To quote one jurist, none other than our
proverbial father of international law, Hugo Grotius:
God did not bestow all products upon all parts of the
earth, but distributed His gifts over different regions, to
the end that men might cultivate a social relationship because one would have need of the help of another. And so
He called Commerce into being, that all men might be
able to have common enjoyment of the fruits of the earth,
no matter where produced.2
A second argument against linking ethics with international
economic law centers upon cultural and economic differences,
which are said to preclude any universal applicability of norms
across societies. Anthropological research, however, shows that
there is a substantial convergence of norms worldwide. For example, it has been argued that the natural law basis of human
rights overrides attempts3 to use custom or traditional practice to
excuse certain violations.
A third argument against linking ethics with international
economic law urges respect for state sovereignty; state sover1 See, e.g.,
JOHN H. JACKSON ET AL., LEGAL PROBLEMS OF INTER-
NATIONAL ECONOMIC RELATIONS (3d ed. 1995).
2 HUGO GROTIUS, DE JURE BELLI Ac PAciS LiBRi TRES
[On the Law of
War and Peace, 1625] (Francis W. Kelsey trans., 1925), Book II, Ch. II, XIII, 5
(emphasizing the desire for social relationships and mutual assistance among
nations as a ground-spring for commerce).
' See Elizabeth M. Zechenter, In the Name of Culture: CulturalRelativism
and the Abuse ofthe Individual,53 J. ANTHROPOLOGICAL RES., 31947 (1997).
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ETHICSAND INTERNATIONAL ECONOMICLA W
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eignty, however, is not without limits. There has been a clear
movement toward global cooperation and responsibility, as many
problems and their solutions do not stop at borders. Our discussions have also conveyed an expanded sense of participation in the
international system, as well as a trend toward institutional democratization. Non-governmental organizations, such as consumer and environmental groups, trade associations, development
and relief agencies, and the like, are all playing a greater role in
shaping international economic law and policy.
With this by way of introduction, I now consider how the
linkage between ethics and international economic law might be
taught in a law school setting. As mentioned, one approach is to
consider the "four C's-conduct, context, content, and criteria.
2. TEACHING LINKAGES BETWEEN ETHIcs AND
INTERNATIONAL EcoNOMIc LAW
2.1.
Conduct
The issue of conduct looks to professional responsibility.
This is the basis of any legal ethics course taught within a law
school curriculum. It may, however, be useful to integrate the
question of ethics into a given type of legal practice. Here, we
could, for example, examine the special challenges of the practice
of international economic law in areas such as conflict of interest,
effective client communication, and segregation of funds.
Several distinctive aspects of this type of practice, in contrast
to most other fields of law, further underscore the importance of
ethics. For one, we play a pseudo-diplomatic role. We are representatives of our country, organization, company, firm, and so
forth, in an international context. Whether we like it or not, we
are judged in this larger setting.
Secondly, we serve in an advisory capacity. As others will act
on our opinions, our sense of responsibility must expand. Also,
we help shape some more or less permanent features of the international economic system including new laws, government regulations, corporate policy, and institutional structures. The values
we pursue in our practice of law leave a lasting legacy.
4 See generally Robert E. Lutz, Ethicsand InternationalPractice:A Guide to
the Professional Responsibilities of Practitioners, 16 FoRDHAM INT'L LJ. 53
(1992) (presenting a discussion of this subject).
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2.2.
[Vol 19:2
Context
As discussed throughout the conference, a wide range of values is pursued through the international economic system. Linkages are part of the context for understanding economic law and
the new demands which are placed upon it. In a classroom setting, it may be instructive to examine recent media reports.
These will help identify various values, and show public demand
for an economic system that is responsive to them.
Over the last two years, I have collected several large files of
newspaper clippings which point to a linkage between ethics and
international economic relations. The headlines include: the
adoption of corporate anti-bribery codes, a ban on trade in land
mines, consumer outrage over the use of child labor, the closing
down of ports to protest live animal exports, the boycott of a major oil company over plans to dump potentially toxic chemicals at
sea, and the rising importance of so-called ethical funds in investment portfolios.
Even the classified advertisement section is not immune from
this linkage. I recently spotted a job opening for an "Ethical
Trading Manager" in The Guardian. This is indicative of a new
initiative to encourage the British government, trade unions, major corporations, and suppliers to develop standards for improving and monitoring working conditions abroad. Even a year ago,
such a position probably did not exist.
To understand the ethical context of linkages in international
economic relations one must also look to other disciplines. This
concept has received comment with respect to historical and sociological institutionalism in the analysis of the World Trade Organization.5 It is worth noting that the emergence of a "global
ethic" governing international business and economics is being
recognized by a variety of commentators. These include the
prominent German theologian Hans Kiing and the management
expert John Naisbitt.
s Philip M. Nichols, Forgotten Linkages-HistoricalInstitutionalismand Sociological Institutionalism and Analysis of the World Trade Organization,in,
Symposium, Linkage as Phenomenon:An InterdisciplinaryApproach, 19 U. PA. J.
INT'L ECON. L. 201 (1998).
6 See HANS KDNG, A GLOBAL ETHIC FOR POLITICS AND EcONOMICs
(1997); JOHN NAISBITr, GLOBAL PARADOX: THE BIGGER THE WORLD
ECONOMY, THE MORE POWERFUL ITS SMALLEST PLAYERS (1995).
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As an aside, which may nonetheless be relevant to a class of
aspiring lawyers, it bears mention that these issues translate into
potential areas of international economic legal practice. This review of the ethical context reveals a whole new range of clients to
advise and problems to solve.
2.3.
Content
The third factor to consider is that of ethical content. What
ethical consensus is emerging as a basis for the conduct of international economic relations? What is the status of these principles
under international law? Three issues may be identified, each of
which has been discussed during the course of this conference,
and each of which carries a very rich ethical tradition.
The first issue is the respect for human rights, equality, and
fundamental freedoms. In legal terms, we often think of the
United Nation's Universal Declaration of Human Rights and related covenants. Certainly, the increased emphasis on the promotion of economic and social rights, in addition to civil and political rights, holds major implications for lawyers involved in
international economic matters.
However, it is worth recalling a pre-legal understanding of
human rights grounded in human dignity. Early philosophers
posited a connection between God and man, allowing nothing to
detract from the inherent value of the individual. In the JudeoChristian tradition, men and women are made in the image of
God. Much of today's human rights jurisprudence is based on
natural law theory, where reflection upon human nature yields an
understanding of moral duties. For many, this remains expressly
linked to God's divine plan for mankind.
Second is the protection of the environment. Vast political
and legal resources have been devoted to this problem in recent
years. Several of the panelists have analyzed the need for global
regulation. An important effort in this regard is the Kyoto summit on global warming, at which nations are attempting
to
•
7 reach
agreement on new standards to safeguard the environment.
Again, some ethical background may be instructive. Both the
words 'economy' and 'ecology' derive from the Greek word
See, e.g., Leyla Boulton, UNSummitLooks to Gorefor Concessions,EUsays
US Must Match its Softer Stance on Greenhouse Gas Emissions at Talks on Global
Warming, FIN. TIMES, Dec. 12, 1997, at 4; Bethan Hutton,Kyoto Compromise
7
Move on GasAgreement, FIN. TIMES, Dec. 4,1997, at 3.
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oikos, meaning household. This carries the connotation of stewardship. We are to be caretakers of the earth, holding it in trust
for the use and enjoyment of our fellow members of the global
household, and for that of future generations.
Third is the creation of an equitable economic order. It is a
sad truism of international relations that the rich are getting
richer and the poor are getting poorer. We have spoken of the
largely unsuccessful efforts of the international community, under
the banner of the "new international economic order," to redress
the imbalances between the developing and the developed world.8
Notwithstanding several so-called development decades and the
work of various international, national, and non-governmental
aid agencies, the statistics speak for themselves. It is estimated
that over one billion people throughout the world live in abject
poverty. Currently, there is renewed impetus to approach these
problems under the rubric of a "right to development." 9
Again, moral teachings such as those of the Catholic Church,
provide some insight on the urgent need for international social
and economic justice.' 0 Special concern is expressed for the poor,
the oppressed, and those who do not have a voice. Indeed, there
is a call for a "preferential option for the poor" in all economic relations and for an understanding of development as a new name
for peace.
Certain fundamental principles, such as the sovereign equality
of states, peaceful settlement of disputes, good faith in the fulfillment of international obligations, and so forth, are deemed to be
the ethical philosophy for international law." It is claimed that
8 See Frieder Roessler, Domestic Policy Objectives and the MultilateralTrade
Order, in THE WTO AS AN INTERNATIONAL ORGANIZATION 6 (Anne 0.
Krueger ed., 1998), reprinted in, Symposium, Linkage as Phenomenon:An Inter.
disciplinaryApproach, 19 U. PA. J. INT'LECON. L. 201 (1998) ("Today, the new
international economic order is long forgotten, and the Charter [on the Economic Rights and Duties of States] lies in the wastebasket of history.").
9 Declaration on the Right to Development, G.A. Res. 128, U.N. GAOR,
41st Sess., Supp. No. 53, at 18b, U.N. Doc. A/41/53 (1986);see also IAN
BROWNLIE, THE HUMAN RIIGHT OF DEVELOPMENT (1989).
10 Papal encyclical letters are an important source of Catholic social teachig. See, e.g., PACEM IN TERRIS (1963); SoLuICrUDO REI SOciAus (1987); see
also CHRISTOPHER MCOusTRA, LOVE IN THE ECONOMY: SOCIAL DOCTRINE
OF THE CHURCH FOR THE INDIVIDUAL IN THE ECONOMY (1990) (presenting a
helpful collection of excerpts).
See Dorothy V. Jones, The DeclaratoryTradition in Modem International
Law, in TRADmONS OF INTERNATIONAL ETHICs 42, 42-61 (Terry Nardin &
David R. Mapel eds., 1992).
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respect for human rights and fundamental freedoms is the most
recent element of this moral philosophy. The protection of the
environment and the creation of an equitable economic order are
in the process of being defined by the international community
but are not yet fully accepted. The coming years will provide
rich opportunities for scholars of international economic law to
shape these principles.
2.4.
Criteria
The final theme to consider is that of ethical criteria, both in
the development of trade law and policy and in the evaluation of
their results. As trade policy is increasingly used as a tool for advancing certain moral values, it is appropriate that the policy
process itself be subjected to ethical scrutiny. Several areas suggest
themselves as a focus for ethical-trade policy linkage.
First is a rethinking of the free trade versus fair trade debate.
Part of this will center on broad issues of protectionism and the
balancing of global and domestic interests. Also, as has been suggested, it is likely that the concept of what is unfair in international trade will expand beyond current formulations. No longer
will the emphasis be solely on market or price-related criteria,
such as dumping or subsidies. This may lead to a new range of
remedies in trade law against so-called "social dumping," designed
to counter certain practices overseas
such as environmental degra12
dation and worker exploitation.
Second, the increasing tendency of nations to impose trade restrictions, or to withhold trade and financial incentives for the
achievement of non-economic objectives, should be considered.
Already, these are in place for national security and foreign-policy
goals related to the limitation of nuclear weapons, containment of
terrorism, promotion of human rights, and so forth. Both the
U.S. Congress and the President have often looked to trade restrictions as leverage for exerting pressure on a target country to
change its practices. One recent example was the proposed denial
of Most Favored Nation status for China unless certain conditions
12
Related to the debate on social dumping is the complex notion of har-
monization of laws in areas such as working conditions and environmental
standards. See, e.g., FAIR TRADE AND HARMONIZATION fagdish Bhagwati &
Robert E. Hudec eds., 1996). In addition to national legislation, the WTO has
also discussed the adoption of a so-called "social clause," although support for
such a measure appears to be waning.
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were met, including improvements in human rights. Controversy
currently surrounds sanctions imposed against Iraq for failing to
comply with UN Security Council resolutions on weapons inspection.
A third example of the ethics-trade policy linkage is in the
regulation of transnational corporations. Such firms are under increasing public pressure to improve their global operating standards. There is an obvious tension between a government's possible implementation of mandatory regulations, and voluntary
improvement efforts on the part of companies and trade associations. More and more companies are adopting formal policies and
codes of conduct in areas ranging from human rights to environmental protection to transparency in transactions. It is fair to
predict that expanded notions of corporate social responsibility
will demand the attention of the international economic lawyer.
As mentioned above, while ethical criteria are integral to the
development of trade policy, further criteria should be used to
judge or evaluate the results of the policies. For example, we return to the issue of using economic sanctions to promote human
rights. Certainly the question of whether sanctions are effective
in changing a target3 country's behavior holds both practical and
moral implications.1
Further difficult moral questions are posed if it appears such
sanctions may be counter-productive. For example, sanctions
may cause a crackdown on freedoms of citizens in the target nation as the economic situation in that country deteriorates.
Propaganda and international tension may increase. As contacts
are closed off, fewer individuals involved in business, media, education, and aid may serve as observers to keep the situation in
check. The economic burdens are likely to be deflected from the
ruling elite, causing harm to the poorest and most vulnerable
members of society. In short, even a well-intended human rights
policy may actually harm the very people it was meant to protect.
An interesting exercise in the classroom context may be to
suggest criteria for the development and evaluation of trade law
It bears mention that other reasons to impose sanctions include their
symbolic value and the desire to "punish" a target nation for unacceptable behavior. For useful treatments of the scope and effectiveness of sanctions, see
13
BARRY E. CARTER, INTERNATIONAL EcoNOMIc SANcTIoNs: IMPROVING
THE HAPHAZARD U.S. LEGAL REGIME (1988); GARY CLYDE HUFBAUER
JEFFREY J. SCHOTT, ECONOMIC SANCTIONS RECONSIDERED (1985).
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ETHICSAND INTERNATIONAL ECONOMICLA W
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and policy. A further element may be the consideration of ethical
trade-offs in the pursuit of foreign policy or business goals. It
may also be possible, if the structure of the course or seminar
permits, to consider the philosophical basis of moral theories
more formally. For example, to examine Aristotelian notions of
distributive or corrective justice, the Kantian categorical imperative, the limitations of utilitarian analysis, the contribution of
natural law reasoning, and the place of virtue and character in the
legal profession. These theories, of course, could be useful in an
exposition of each of the four ethical areas outlined.
3. CONCLUSION
In closing, it is worth reiterating that ethics are important to
the development and practice of international economic law.
Four areas of such linkages-conduct, context, content, and criteria-have been highlighted in this Article. The task of finding a
place to advance these linkages, as the organizers of this conference envisioned, may well rest with the teachers of the subject.
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